Color Blind Constitution

Summary

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Amicus with Dahlia Lithwick: "Color Blind Constitution"

Podcast: Amicus With Dahlia Lithwick | Law, justice, and the courts
Host: Dahlia Lithwick
Guest: Professor Risa Goluboff, University of Virginia
Date: November 28, 2015
Episode Theme:
A deep dive into the legal and historical roots of the Supreme Court’s affirmative action jurisprudence, focusing on the concept of the "colorblind Constitution." The discussion uses the then-pending case Fisher v. University of Texas as a lens to explore how the Supreme Court’s understanding of race, equality, and the Constitution has evolved from Plessy v. Ferguson and Brown v. Board of Education up to the present Roberts Court.

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Main Theme and Purpose

The episode examines the tension in Supreme Court jurisprudence over whether the Constitution requires the government to be "colorblind," especially in education. Through a wide-ranging conversation with law and history professor Risa Goluboff, Dahlia Lithwick explores how concepts like equality, race, and colorblindness have shifted, been appropriated, and redefined from the late 19th century to contemporary affirmative action debates.

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Key Discussion Points and Insights

1. Background: Fisher v. University of Texas and Affirmative Action

• Case Overview ([00:55]):

  • Fisher v. University of Texas concerns a white student (Abigail Fisher) challenging UT Austin's admissions policies that consider race as one factor among many.
  • UT's "10% plan" automatically admits the top 10% of Texas high school students, indirectly promoting diversity because of segregation, but supplements this with holistic review where race is a minor factor ([02:42]).

• Legal Context ([03:49]):

  • Recall of 2003 University of Michigan cases: Gratz v. Bollinger (undergrad—struck down for mechanistic point system) vs. Grutter v. Bollinger (law school—upheld because of holistic admissions).
  • Justice O’Connor’s "25 years" quote in Grutter signals a hope/expectation that race-based affirmative action would eventually become unnecessary ([07:01]).

2. What Does ‘Colorblind Constitution’ Mean?

• Origins in Plessy v. Ferguson ([12:56]):

  • Justice Harlan’s famous dissent asserted the Constitution is colorblind, but Goluboff cautions that Harlan “still believed in white dominance… the idea of the colorblind Constitution is not inconsistent with the possibility that we live in a caste system in which white people still have the power.” ([13:30])
  • Harlan’s version was not modern progressive equality.

• Modern Supreme Court Usage ([15:43]):

  • The notion is now central to conservative legal thinking, with justices like John Roberts arguing the real constitutional harm is “the government thinking about race.”
  • Competing philosophies:
    • Anti-subordination view: Constitution should dismantle systemic, societal inequality.
    • Anti-classification/colorblind view: Constitution prohibits any race-based government action, regardless of motive.

• Notable Quote – Justice Roberts’ Aphorism ([15:43], paraphrased):
  “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”

3. The Role of Brown v. Board of Education

• Two Lenses on Brown ([19:37]):

  • Brown I: Focused on the inherent harm of segregation and importance of ending government-mandated racial separation.
  • Brown II: Concerned with practical remedies—“with all deliberate speed” became infamous for enabling delay, but also indicated that real, practical integration required active, race-conscious government measures ([22:52]).

• Tensions in Interpretation ([24:38]):

  • For some, like Chief Justice Roberts, “achieving Brown means doing nothing on the basis of race” ([25:33]).
  • For others, like Justice Breyer, Brown represented a promise of real, lived equality that remains unfulfilled ([29:34]).

4. Modern Supreme Court Debates—"Parents Involved" and Beyond

• Seattle/Louisville School Cases ([24:38]–[28:53]):

  • John Roberts, referencing Brown: “The way to achieve a system of determining admission to public schools on a nonracial basis is to stop assigning students on a racial basis.” ([26:57])

  • Justice Breyer’s Dissent ([29:34]):

    • Powerful reading from the bench, asserting that Brown was about achieving equal, integrated society, not just colorblind process.

    Quote — Justice Breyer ([29:34]):
    “For Brown held out a promise. It was a promise embodied in three amendments designed to make citizens of former slaves. It was a promise of true racial equality, not as a matter of fine words on paper, but as a matter of everyday life...”

• Justice Kennedy’s Pivotal Role ([34:23]):

  • Often the swing vote, believes the government can (sometimes must) address social inequality, but is wary of direct race-based allocations—prefers “race-neutral” means ([35:15]).
  • “He’s really struggling; he’s not clearly in one camp or the other… he recognizes real racial inequality, but doesn't like the government giving things out on the basis of race.” (Goluboff, [35:15])

5. Diversity as the Justification for Affirmative Action

• From Remedy to Diversity ([36:38]):
  • Original justification was remedying past discrimination.
  • The Court narrowed this: only direct remediation of harms the government itself caused is constitutionally legitimate. Broader societal inequality isn't sufficient justification. Thus, diversity became the remaining permissible rationale.
  • Goluboff:
    “It’s a contingency of history that we end up with diversity as the justification ... That already is a narrowing of what government is allowed to do when it comes to race. And I think that's one step on the path to this idea of a colorblind Constitution.” ([39:49])

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Notable Quotes & Memorable Moments

• On Harlan’s legacy ([13:30]):

  • “He bucked the trend ... but I think that we're wrong if we think of him as a progenitor of modern progressive equality ideals... the idea of the colorblind Constitution is not inconsistent with the possibility that we live in a caste system in which white people still have the power.” — Prof. Risa Goluboff

• Justice Roberts in Parents Involved ([26:57]):

  • “The way to achieve a system of determining admission to public schools on a nonracial basis is to stop assigning students on a racial basis.”

• Justice Breyer’s Dissent ([29:34]):

  • “For Brown held out a promise. It was a promise embodied in three amendments designed to make citizens of former slaves. It was a promise of true racial equality, not as a matter of fine words on paper, but as a matter of everyday life... It sought one law, one nation, one people...”

• On Justice Kennedy’s position ([35:15]):

  • “[He] thinks that when government gives certain things to certain people because of their race at all, that’s a problem… he’s really struggling to figure out, I think race matters, I think we still got a problem of racial inequality, but I don’t like this government giving things out on the basis of race.”

• On diversity as a rationale ([37:51]):

  • “It’s … odd. It’s not, in fact directed at the students who are the beneficiaries. It’s directed at the white students who, I guess, get the benefit of having a diverse classroom. So that’s odd.” — Lithwick

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Timestamps for Key Segments

• [00:00] — Introduction, Fisher v. University of Texas background
• [03:49] — Context: Michigan affirmative action cases and Sandra Day O’Connor’s role
• [07:01] — O’Connor’s “25 years” sunset and whether the country has achieved colorblindness
• [12:56] — Origins: Plessy v. Ferguson, Harlan’s dissent, and the original meaning of "colorblind"
• [15:43] — The conservative co-opting of the colorblind Constitution; Roberts' Parents Involved aphorism
• [18:18] — Probing Roberts' logic: can colorblindness fix inequality?
• [19:37] — Two readings of Brown v. Board and the evolution from Brown I & II
• [24:38] — The "Parents Involved" decision: Roberts' and Kennedy’s opinions
• [28:53] — Justice Breyer’s emotive dissent and the promise of Brown
• [31:08] — The shift in conservative responses, Roberts as inheritor, and Thomas’ distinct objections
• [34:23] — Justice Kennedy's ambivalence and focus on race-neutral means
• [36:38] — Diversity as a rationale for affirmative action, the narrowing of remedial justifications
• [39:49] — Conclusion and reflections on the state of affirmative action and the Court’s trajectory

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Summary Takeaways

• The “colorblind Constitution” is a complex, historically contingent idea that has shifted from a dissenting opinion (Plessy) to a rallying cry for both progressive reform and conservative restraint.
• Brown v. Board of Education is read in fundamentally different ways: as either a call for race-neutral government or an unfulfilled promise of equality.
• The Supreme Court’s approach has narrowed over time, constricting permissible justifications for race-conscious policies to “diversity”—a rationale that may serve institutional needs more than remedying inequality.
• The future of affirmative action lay in the balance at the time of the episode, with Justice Kennedy as the likely swing vote but hesitant about anything but race-neutral means.
• The debate ultimately revolves around views of government capability, societal trust, and historical responsibility for racial inequality.

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For listeners and readers seeking an accessible yet deeply informed history of affirmative action law, this episode offers a clear, illuminating tour through over a century of constitutional debate on race, equality, and justice.

Transcript

[A]

Amicus is sponsored by MileIQ. If you're one of the 60 million Americans who drive for your work, then you know that your miles are your dollars and every mile you do not log is money you're losing. MileIQ is the only mileage tracker app that detects, logs and calculates your miles for you, ensuring that every mile is accounted for and no dollar is ever lost. Try mile IQ for free today by texting amicus. Amicus to 31996. That's amicus to 31996. Hi and welcome to Amicus Slate's podcast about the U.S. supreme Court. I'm Dahlia Lithwick, Slate Supreme Court correspondent. Well, in a little under two weeks, the high court is going to hear oral arguments in the terms big, big affirmative action case, Fisher vs University of Texas. This case is actually known as Fisher 2 because it was first argued at the court in 2013. Back then, ruling by a 7 to 1 margin, the court kicked the case back to the US Court of Appeals for the Fifth Circuit, which had erred, said the high court, in not applying strict scrutiny that's the most skeptical form of constitutional review to the affirmative action policy at UT Austin. So now Fisher comes back to the court, presumably because when the Fifth Circuit heard the case a second time, they still found that UT Austin's admissions policy, which still allows the university to consider race and ethnicity but in limited ways, was constitutionally kosher. This is because we have a long constitutional tradition, going back to Brown v. Board of Education and the affirmative action cases that followed, of taking race into some account when attempting to remediate past discrimination. So this week, with no arguments scheduled at the court, we're going to take a closer look at the historical antecedents of Fisher, from Brown v. Board to more recent affirmative action cases and some desegregation cases that have reflected a whole new view of race in the Roberts Court era. We invited in a historian, Professor Risa Golubovoff, who teaches law and history at the University of Virginia and is the author of the Lost Promise of Civil Rights. And her new book, Vagrant Nation, will be coming out in February from Oxford University Press. Risa is here to help us understand, I hope, how we got from Brown v. Board to Fisher in just over half a century. So, Risa Galiabaf, welcome to Amicus.

[B]

Thank you. It's great to be here, Dalia.

[A]

So before we dive deep, deep, deep into the legal history around this, can you just help us understand, did I recap Fisher? Right. And Fisher is in effect A white student, Abigail Fisher, who challenges UT's admissions program. Can you fill in any gaps that I've missed?

[B]

Well, I think one thing that I would add is that UT Austin's admission program isn't just a race based admissions program. In large part, the way the University of Texas has responded to earlier affirmative action cases is to base quite a bit of their admissions of minority students on what they call the 10% plan, which admits the top 10% of Texas high schools. And because Texas high schools are so racially segregated, that yields some percentage of minority students at ut. But they supplement that program with a holistic review of each applicant's application. Are they on the debate team? Do they play lacrosse? Have they faced disadvantage in their lives? And as part of that, are they a racial minority? And that part of their admissions program actually constitutes a very small number of admits. I think they get about 3% African Americans from their top 10% plan, and then they get another 1% of their African American student body through this program that is now at issue in Fisher.

[A]

So let's go back a little bit one jump to 2003, because it's hard to talk about Fisher and affirmative action without understanding the University of Michigan cases. And the big thing that's changed between 2003 and Fisher 1, and presumably Fisher 2 is Sandra Day o', Connor, right?

[B]

Exactly.

[A]

So tell us what the decision was in 2003 when the court last looked at a big, big affirmative action program, this time in Michigan, and blessed it.

[B]

So there were actually two programs at issue in 2003. There was the University of Michigan's undergraduate admission program, which the court struck down in a case called Gratz v. Bo, and then the Law schools admissions program, which the court upheld in Grutter v. Bollinger. And the difference between the two was really how race was treated and how the admissions program operated. And in part, that's a matter of size and money. Right. The University of Michigan undergraduate is tremendous and they process tens of thousands of applicants. And the law school is much smaller, has more financial wherewithal, more personnel resources. So in the undergraduate, they gave a standard point system that gave you a certain number of points for playing football and a certain number of points for being a racial minority. And the Court said in a 5 to 4 decision in which Justice O' Connor was in the majority to strike down the program. The court said that you can't just use race in such a blocky way. You can't say it's worth this number of points to be a racial minority. But the law school's program was much more nuanced. And the law school's program, the key word is holistic. The second keyword is individualized. Each person was looked at on their own to see what did they bring to the law school. And as part of that, race could be considered. But it wasn't considered alone. It wasn't considered as a uniform number for every student. And Justice o' Connor said, because diversity is a compelling interest because we live in an international, global, ethnically and racially diverse world. And we have to train our students and especially our student leaders who are coming out of this, you know, very prestigious law school. We have to train them to operate in that world and they have to live in a diverse law school setting. And so what she says is it's okay long as it's holistic, so long as it's individualized, and so long this is the bad word that goes along with those good words. So long as there's no quota, it's okay for the University of Michigan to consider race at the margins when admitting students.

[A]

And just to loop back to the UT Austin program, that's at issue in Fischer. That's kind of the program they have. Right? It's holistic. It's not a quota. It's just looking at each student in the totality of all the factors that they bring to the table. And race and ethnicity is one of those factors. Presumably, if you can't even do this, says ut, you can't do anything that looks like affirmative action, right?

[B]

Yes, that's exactly right. They think they're complying with what Gruder v. Bollinger held, and they're trying to do that. And now the question is, with o' Connor gone and with the Court slightly further to the right and with Justice Kennedy as the swing vote instead of Justice o', Connor, is that still going to be sufficient?

[A]

So two things. One, we know that Justice Kennedy, Kennedy has never found an affirmative action program he likes. I think that's one of the reasons that supporters of affirmative action are quite nervous about the Court even agreeing to hear the Fisher case. But let's also talk just briefly about o', Connor, because you mentioned her controlling opinion in Gretter. And one of the things that she says is this only needs to go on for 25 years. After 25 years, we are going to be okay. Was that delusional on her part? Was it optimistic? Was she right? Here we are. We're kind of halfway along that timeline. What would she thinking with her 25 year marker?

[B]

I think she was optimistic. I wouldn't. I think she's an optimistic person, and I think she has a lot of faith in what people can do and how change can happen. And if you think back 25 years, from 2003, right, you're in the midst of busing controversies, you're in the midst of massive desegregation, but also then massive white flight. And I think things do look a lot different in 2003 than they did 25 years before that. You know, when you think about where we are in the world right now, especially right at this moment, you know, campuses are in an uproar. The tensions between minority populations and the police are in an uproar. Right. I think at this particular moment, it kind of does look delusional because it doesn't seem like we've moved that far. But I think from her vantage point, she thought she was being optimistic. Now, as you say, you know, it might be that it ends sooner than she thought it would end. You know, you call it the sunset provision, this 25 year idea. And it's a pretty rare thing for the Supreme Court to predict that in 25 years, constitutional doctrine will change because the world will have changed enough that this doctrine will no longer be necessary. You don't see that in very many constitutional law cases.

[A]

And yet o', Connor, in a way, gives voice to the very optimism that Chief Justice John Roberts, Sam Alito, Antonin Scalia, Clarence Thomas, and I think to some degree, Justice Anthony Kennedy say it's already happened. You know, yay. We don't have to wait 25 years. We are a colorblind society. So it's interesting, you know, whether you want to call it optimism or blindness, there is a feeling, I think, at least among one part of the Court, that we're already there. Right?

[B]

I think that's exactly right. But I wouldn't put either o' Connor or Justice Kennedy in that category. Actually, I think that they both disagree with Justice Roberts, who really thinks that the harm, the racial harm that is constitutionally cognizable is the government thinking about race. When the government thought about race, we got slavery and we got Jim Crow, and the government should never think about race. And affirmative action is, I don't know that he would say, just as bad, but he would say that's the real harm is when the government classifies people on the basis of race. And I think that both Justice o' Connor and Justice Kennedy think there are other racial harms, too. They think that lack of opportunity is a harm. They think that too much racial concentration is a harm. This is what Anthony Kennedy said in another case, the parents involved case. So I don't think that they're clearly in the colorblind camp. I think both of them think there is some place for government agents, right, like the University of Michigan or the University of Texas to be able to take some steps to mitigate racial harms out there in the world. I actually think Justice Kennedy thinks those steps are more limited than Justice o' Connor does. Right.

[A]

She's.

[B]

She said it's okay to think explicitly about race so long as you do it holistically and individualistically and, and in a nuanced way. Whereas Justice Kennedy thus far has largely said you can have a racial goal. Right? You can think that we need diversity or you can think that we have to help students get out of, you know, racially concentrated schools, but you can only accomplish those goals with race neutral means. That's where I think they might disagree, and that's where I think this case is going to possibly founder for the defendants.

[A]

Risa, I'm going to press pause on you and tell listeners a little something about today's sponsor for the show, Mile. Now, listeners, if you are driving for your job, as I do, and most of you are, and you aren't already using MileIQ, then you are literally losing money fast. MileIQ is the number one mileage tracker app. More than a million Americans trust it to automatically log their drive time every day. It's the only mileage tracker app that detects, logs and calculates your drives for you. It does it automatically. It's easy to use. I'm talking a finger swipe, folks. And it keeps your drive securely stored in the cloud. The average MileIQ user logs about 547 bucks a month in their drives, and that's over $6,000 a year that you may not be claiming. Mileiq has a five star rating in both Google Play and itunes app stores. So don't waste your time manually tracking your mileage and don't waste money that you're entitled to. MileIQ will do all the work and lets you focus on what's important to you. Text Amicus to 319 9, start your 40 drive free trial. Create an account this week and you'll get 20% off an annual plan. So let's talk because you've used the word colorblindness and that is, I think, a signal term when you think about all the way back to Plessy, all the way back to Brown, going forward to Fisher, tell us the story of the sort of Harlan dissent, the notion in Plessy that we need to have a colorblind Constitution. And, and in addition to sort of giving the background. Risa, you're the historian. Help us understand how it went from meaning, I think what Justice Harlan wanted it to mean in the dissent in Plessy v. Ferguson to what it means today.

[B]

So Plessy v. Ferguson is the 1896 case where the Supreme Court upholds a segregation law that mandates segregation on trains, and Justice Harlan is the only dissenter. It's an 8 to 1 opinion, and a lot of people take that to mean that segregation was really inevitable, inevitable that the Court had no choice. But there's Harlan there saying, actually we could think about this differently if we wanted to. And so he describes there that the Constitution is colorblind. And what that has come to mean is the idea that the Constitution and the government actors who are acting under the Constitution shouldn't be thinking about race as they act. They should be acting in race neutral ways at all times. And what I think Harlan meant by that at the time is a little bit different. Harlan often is the great dissenter and, and he gets held up as the, the noble, triumphant progressive dissenter in this case. And to some extent he was right. He bucked the trend. They were in favor of segregation, and he said no. And so he gets a lot of credit for that. But I think that we're wrong if we think of him as a progenitor of modern progressive equality ideals. Right. He says at one point in the case that, you know, the white race. I'm paraphrasing here. Right. The white race is the dominant race and so always be. And in his view, the idea of the colorblind Constitution is not inconsistent with the possibility that we live in a caste system in which white people still have the power. And he thinks that white people get to maintain the power so long as they treat people equally under the law. Right. He wants them to treat people equally under the law. But he doesn't really think African Americans are equal. He doesn't really think they're ever going to be equal. And there are also these passages in the opinion where he talks about how can we prevent African Americans from riding on trains when we don't prevent Chinese from riding on trains? A race so far into our own. I mean, his sensibilities are not our sensibilities. And so though he is a hero in some sense, he also kind of sets the stage for the colorblind Constitution being something that doesn't necessarily correspond with the end of racial inequality.

[A]

I think that what you're saying is really, really useful because I do think that we like to shorthand Harlan as, you know, the. The person who really Brown, you know, was the next thing coming. And I think you're quite right. Brown would have shocked him. But help us understand how I think, in your words, in an article that I remember you writing for Slate a couple years ago, the conservative wing of the court co opted that notion of a colorblind Constitution to mean something probably even slightly different from what Harlan meant.

[B]

Yes, absolutely. So when you ask yourself, well, what does the Constitution do? And in particular, the equal protection clause, right, The Equal protection clause, the 14th amendment ratified after the Civil War, and it has a statement in there that says, no state shall deny any person the equal protection of the laws. Well, what does it mean for a state to deny a person equal protection of the laws? And going into Brown, there were a lot of different conceptions of what Jim Crow was, of what equality would look like, of what discrimination was. And one way to think of it is that the equal protection clause should protect people from living in a world of racial inequality. Right. That if racial inequality exists, it's because we allow it to, the government allows it to, and, and it shouldn't be able to do that as a matter of constitutional rights. The alternative is to say that, and this is where you get these dueling aphorisms in parents involved. The way to stop discriminating on the basis of race is to stop discriminating on the basis of race. That's one of the things that Chief Justice Roberts says in parents involved. And the idea there is no, the real harm isn't whether there's inequality in the world. There's always going to be inequality in the world. That's not the business of the Constitution. The business of the Constitution is when a government actor actively discriminates against anyone on the basis of race. And another way to think about this is to think about subordination, right? To think about who has power and who doesn't have power. So in one way of thinking about this, in the first way, the, the anti subordination way, discrimination is really about discriminating against the people who don't have power, right? And so affirmative action is trying to help the people who don't have power in the world. And the other way of thinking about is quite neutral. Neutral is to say whenever somebody gets something or doesn't get something because of their race, whether they be a white person, Or a man or a woman or an African American or a Hispanic person. Doesn't matter if the goody the state given out goodie like a spot at the University of Texas is given out because of race. That's the kind of harm that we want to stop. And that's exactly the colorblind Constitution, right? That what the Constitution requires is that government act in a colorblind way. And the real question is, if. If you think we don't live in a colorblind society, then does having a colorblind Constitution allow for the perpetuation of racial inequality? Or as Justice Roberts would say, no, the more colorblind we force governments to act, the less racially unequal our society will end up being. Does colorblindness fix the problem, or does.

[A]

It contribute to the problem and help us understand? Because I think this is where Roberts continues to lose me, quite honestly, is how is it that the government opting to be colorblind is going to somehow do the remedial work of fixing prior inequality? Or is the idea that we don't need to fix it anymore? It's not doing remedial work. It's simply, as you say, perpetuating being aware of race in a way that's unhealthy and ultimately unproductive.

[B]

Yes. And I think he would go further than saying we don't need to do that remedial work anymore. I would think he would say we should not be doing that remedial work. Doing that remedial work is unconstitutional, that the nature of Jim Crow. It was a formal legal system. We have dismantled that formal legal system. And whatever inequalities exist in the world are not the stuff of constitutional remedy anymore. The government really shouldn't be doing that. And the less government thinks about race, the less other people will think about race, and the more we will end up in a truly colorblind society. And you might think that's not likely to happen. Right? You might be skeptical about that empirical claim, but they're dueling empirical claims. Does the government thinking about race help allay the problem, or does the government thinking about race make it worse?

[A]

So I want to give you a chance to talk about Brown, mostly because it sort of seems that it's the pivot around which everything that happens before and after, you know, everything changes. So how, in your view, does Brown, as it existed when it came down, how are these two dueling views of Brown playing out, out subsequent? In other words, Brown happens. And I think at the time, we all thought Brown meant what Brown meant. But now we sort of have two different filters through which we look at Brown, and I wonder if you can help us understand how that came to be.

[B]

So I actually think we always had two different filters in looking at Brown before Brown happened. We like to tell a very lovely story, which has a fair bit of truth to it, that the NAACP Legal Defense Fund, you know, woke up one day and said, we're challenging Plessy and we're bringing Brown. And that's not how history looks, right? And so during the 1940s, the NAACP, as well as other organizations like the Civil Rights section of the Department of Justice, were doing all kinds of civil rights litigation. They were doing it in education, but also in labor. They were doing it in housing. They were doing it in police brutality. And as they do that, they are thinking about what equality means, what the 14th Amendment protects. They're also thinking about the 13th Amendment, which is the amendment that outlaws slavery. Well, in outlawing slavery, how much freedom does it promise? How much equality does it promise? THOMAS and they are thinking about Jim Crow not as just a system of legal, formal segregation. Jim Crow is also a system of private exploitation. It's the replacement for slavery, which was an economic system. And so they're thinking, and the people who are coming to them to complain about Jim Crow are thinking about both their actual material inequality as well as laws that segregate and discriminate. And eventually, in the early 1950s, the NAACP Legal Defense Fund does think that what the first thing they have to do is challenge Plessy. One of the things that Plessy said, which is what Harlan is responding to, is that if Homer Plessy, this African American man who is not allowed to sit in the white car of a train, if Homer Plessy thinks that segregating him is a harm to him, says Plessy versus Ferguson, that's his problem. That's just because he feels badly segregation isn't inherently harmful. It's just separation. And so one of the things that the NAACP thinks is we have to show that segregation in and of itself is a harm, that the legal separation is a harm, and that's what they do in Brown. But the NAACP doesn't think that's the only harm. And they don't think segregation is going to fall, and Jim Crow is going to fall, and African Americans are going to be equal just if you end formal, legal segregation. But because of the way they bring the suit and because of the way the court writes the opinion, you can read the opinion as a colorblind opinion. You can read the opinion as indicating, well, what you really have to do is end formal legal segregation, and then you're good. That's not what the NAAC wanted. It's not what the court wanted, but it is one way to read Brown.

[A]

So that's one lens, right? That's Brown one.

[B]

Right.

[A]

But what you're about to tell us is there's a Brown two, and it's a completely different framing of the same problem. Right, exactly. So talk about Brown 2.

[B]

So the court doesn't answer the question of what do you do about desegregation? How do you actually desegregate in Brown 1? And they hold a whole new set of oral arguments. Everybody comes back to the court. They submit their briefs, they argue the case about what should be done. And in Brown vs. Board of Education 2, the following year, 1955, the court answers that question. And the most famous part of that opinion is this idea that the schools need to desegregate with all deliberate speed, which is a crazy phrase that sounds oxymoronic. And that's how people hear it. They hear, oh, we don't really have to do this very quickly. Thurgood Marshall and the NAACP sees that as a defeat, and the white southerners who don't want to desegregate see it as a victory that they don't have to do this very quickly. But I think there's a way to read Brown, too, as actually far more expansive than the way we usually read it. The opinion is full of practicalities. It's full of, how are we actually going to integrate the schools? What the court is thinking about is not, let's change the laws and be done with it. Once the laws are no longer on the books saying black students go to this school and white students go to that school, then we're finished with our project here. What they're saying is we have to think about bus routes, and we have to think about textbooks. We have to think about teachers, and we have to think about all the practicalities that actually create integrated schools. And so what Brown 2 tells you is that the court isn't thinking. The problem is about government thinking about race, because the government's gonna have to think about a race a whole lot in order to actually desegregate the schools. They think the problem is segregated schools. And if it means that you have to think about creating new bus routes and creating new school district lines in order to actually integrate the school schools, then that's not only.

[A]

Okay, that's required so let's listen because I think this flows beautifully into this is the tension that plays out. We've mentioned the case a couple of times, this 2007 case, parents involved versus the Seattle schools. And this is not an affirmative action case. It's a case that has to do again with the fallout from Brown. We're trying to remediate segregated schools. And the corporate court looks at a program both out of Seattle and Kentucky and says, no, not okay. And Justice Anthony Kennedy votes with the conservatives. Let's listen to John Roberts famously announcing his opinion in the parents case, because I think it captures exactly what the tension is that you're describing, which is we've achieved Brown by doing exactly what doing we're doing.

[C]

Now the parties vigorously debate which side is more faithful to the heritage of our decision in Brown v. Board of Education. This is a quote from the argument of the plaintiff's school children in Brown. We have one fundamental contention which we will seek to develop in the course of this argument. And that contention is that no state has any authority under the equal protection clause of the 14th Amendment to use race as a factor in affording educational opportunities among its citizens. It was that position that prevailed in this court, which emphasized in its remedial opinion in Brown that what was required was, and I quote, to achieve a system of determining admission to the public schools on a non racial basis. How can plans such as these that look at individuals, children, and say, you cannot come to this school if you are black or you cannot come to this school if you are white be said to be determining admission on a non racial basis for schools that did not segregate on the basis of race, such as Seattle, or that have removed the vestiges of past segregation such as Jefferson County. The way to achieve a system of determining admission to public school schools on a non racial basis is to stop assigning students on a racial basis.

[A]

So I want you to react to that because it seems like it perfectly captures the argument you're making of this is one absolutely legitimate way to look at Brown. Yes.

[B]

I mean, I'm not thinking about legitimate or not legitimate. Right. But I do think that two things are simultaneously true. That's in the brief. Right. And he is correct that the argument that Thurgood Marshall is making making is that the school system should not be assigning children where they go to school on the basis of race. That's undeniably true. But I think if you think about what Thurgood Marshall was saying in the context in which he was saying it it was inconceivable to him that the assignment of white children to white schools was problematic. It was inconceivable to him the world that we now live in, where what we're fighting about is white children or white college students who feel discriminated against black children are being given spots. And I do think that there are ways in which the NAACP was a little naive. Right. I think Thurgood Marshall really thought, once you take care of the legal problem, a lot of the other problems will take care of themselves. And you can see an evolution in his own thinking over time about how necessary, much more aggressive remedies are. But I don't think it's crazy to say at that moment in Brown, he did kind of think race neutrality was going to do a lot of the work. By the time Justice Roberts talking in 2007, I think Thurgood Marshall no longer thought that. Right. And watching the process, the uneven, difficult process of desegregation and seeing how entrenched segregation is and how entrenched inequality is, that he would have thought, that's not what we meant. But Justice Roberts isn't wrong to find that quote, and I doubt.

[A]

Now Thurgood Marshall is no longer on the court in 2007. And so it's Justice Stephen Breyer, for whom, parenthetically, you clerked, who gives voice to the other side of the argument in his dissent in Parents. He's, I would say, as angry as I've seen him and probably as angry as he presents. So let's listen to Breyer sort of talking about the other version of this, which is, you know, his quote here is, you know, Brown held out a promise and we have not fulfilled. So let's have a listen to Breyer reading the very end of his dissent from the bench in the Seattle Schools case in 2007.

[C]

For much of this nation's history, the races remained divided. It wasn't that long ago that people of different races, drank from separate families, rode on separate buses, studied in separate schools. In this court's finest hour, Brown vs Board of Education challenged that history and helped to change it. For Brown held out a promise. It was a promise embodied in three amendments designed to make citizens of former slaves. It was a promise of true racial equality, not as a matter of fine words on paper, but as a matter of everyday life of the nation's citizens and schools. It was about the nature of democracy that must work for all Americans. It sought one law, one nation, one people, not simply as a matter of legal principle, but in terms of how we actually live our lives.

[A]

So there's Justice Breyer saying Brown wasn't promising to be colorblind. Brown promised that we would be equal. We're not there. Does he feel like. I mean, he certainly says in this dissent that this is a betrayal, and he feels betrayed. Does he feel that the Roberts interpretation of Brown is just kind of cynical? He seems to be saying it is, right?

[B]

Yes, I think he is. I think he thinks Brown wasn't, as he says about words on a piece of paper. Brown was about what our nation looks like and how people live and what equality really means. And I think he does think that the Roberts view is cynical, that it flattens out what Brown was meant to do. And, you know, there are historians who've written about. And this isn't about John Roberts in particular. I think he's an inheritor of changes in the way folks have thought about race inequality. But Certainly in the 1970s and the 1980s, once formal legal segregation was largely eradicated, and the question became, well, what do you do about the remaining inequality? How do you fulfill Brown's promise? There's a real shift in the conservative response to affirmative action and a real shift in the conservative response to continuing attempts to end racial inequality. And if you think back to Brown and massive resistance in the 1990s, 1950s into the 1960s, people were explicitly open about saying, we don't want integration, we want segregation. And those voices go away, and the voices that replace them are voices that say, fine, formal desegregation is okay, but that's it. Right? All the Constitution requires is colorblindness, and that's a way of stopping the next step of remedies which are more aggressive and require more of the government or allow more of the government? And I think Roberts, an inheritor of that tradition, and I think Breyer sees it through that lens, and he thinks, well, to call it colorblindness is to revoke the promise, Right? To call it colorblindness is to hold back from what we really meant when we said we were going to end Jim Crow, which was real racial equality. And I think he says, if we're not there, then there still has to be a role for government. And Breyer has a lot of faith in government. He thinks government can do good. And part of the question underlying this is, well, how much do you trust the government? And do you trust the government? There's an earlier affirmative action case, Adoran Contractors, right, Where the question is, can you tell a difference between a no trespassing sign and a welcome mat. And is it okay for the government to say, we know when we mean well when it comes to race and affirmative action is meaning well, and we know when we don't. And that was segregation, you know, and Clarence Thomas actually is the voice on the, the court who most says, you have no idea when you mean well and when you don't. And his argument is quite different from John Roberts argument. And his argument is affirmative action really harms African Americans. It harms them. It's stigmatizing. It is inferiority complex. Creating it forces or enables African American students to attend institutions for which they are not prepared. Other people view them as not being prepared. So even if they are prepared, they're stigmatized. And so his response to Breyer is you're just perpetuating, perpetuating the harms that government has created before, and you have too much faith that government can actually help African Americans and not harm them by thinking about race.

[A]

And if we're going to loop back to Justice Kennedy, because we can't have a show without looping back to Justice Kennedy, it seems to me, and you made this distinction from the outset, I think it's important he is not of the view that government has no role to play. And in fact, just last term in a housing discrimination case, he came charging in talking about implicit bias, you know, things that one would never expect to hear from Justice Kennedy, and saying there is a role for government to play in remediating discrimination. But there's something about affirmative action that just makes him feel hinky. Right. I mean, it's something to do with the optics of, you know, and we thought maybe, well, if it's not a quota, if it's just this holistic thing, maybe that would mollify his problem with having, you know, rigid system. But when it comes to affirmative action, it's not the quota that bothers him. Right.

[B]

I think that it's. I used this word goodies before. I don't have a better word. Right. I think he thinks that when government gives certain things to certain people because of their race at all, that's a problem. So he talks about, he's happy with the 10% plan. It is not a direct way of giving people things on the basis of their race. It's obviously an indirect way. Right. But it's not a one to one correlation between race and getting a certain government service or government good. And I think when you see him in the fair housing case and you see him in parents involved, he's really struggling he's not clearly in one camp or the other, and he's really struggling to figure out, I think race matters. I think we still got a problem of racial inequality, but I don't like this government giving things out on the basis of race. And so he's tried to push people in the direction of use race neutral means. Use race neutral means. And I think that what happens is, is either he continues to promote that and tries to think more creatively about what those race neutral means look like, or. Or tell universities that they have to. Or at some point, perhaps, I don't know that this ever happens, but at some point he says, wow, maybe it's not achievable with race neutral means. And I now have to choose between these two values. Right. I have to choose between my preference for colorblind actions by the government and my recognition that there's real racial inequality in the world.

[A]

Anthony Kennedy, Crossing the Rubicon so you don't have to. So I want to ask you one last question, because again, we flicked at this at the very beginning. I think it's awfully important, and I think it's important in helping to think through where the conversation around affirmative action starts to go off the rails after the Michigan cases. And that is this question of diversity. Because we know that as other values fall away, and the court finds it very hard to say, okay, affirmative action exists to remediate past harms or affirmative action exists to do other things, the Court fixes on this idea that as long as we're promoting this core value of diversity in the classroom, affirmative action can continue to be constitutional. And this is so strange, Risa, in so many ways, because first of all, it's not, in fact directed at the students who are the beneficiaries. It's directed at the white students who, I guess, get the benefit of having a diverse classroom. So that's odd. But I think forward, it just looks like such a flabby justification for something that, you know, as we have said here, may or may not be the promise held out from Brown.

[B]

Yeah, I think it's a contingency of history that we end up with diversity as the justification. And when affirmative action programs first began, diversity wasn't the justification. The justification was remedying past harms, remedying the discrimination and the history of racial inequality that had existed for, as Justice Breyer says, 80 years of segregation and hundreds of years of slavery before that. And one of the things, I think the way to think about this is the switch to diversity is already a narrowing of what's going to be okay? So the court starts to say that it's okay. This is the first step, right. It's okay for the government, for some governmental entity to. To remediate a problem they themselves created. If the University of Texas in the past themselves had a policy of discriminating against African Americans, they get to fix that problem until the problem is gone. And then they can't consider race anymore. But they can consider race so long as they're fixing a problem they created. But what the court said several decades ago now was that it's not okay for some entity like the University of Texas to try to fix racial inequality that just exists in the world. Now, it may be that the racial inequality that exists in the world, and some people would argue this is rooted ultimately in governmental actions. Right. And that comes out in the fair housing case, and that comes out in other places. Right. That there have been governmental actions all over the place that have instantiated racial inequality in society. But that kind of indirect governmental responsibility is not enough. And the court says you have to be directly responsible in order for past discrimination to be the justification. And so the justification becomes diversity. And that already is a narrowing of what government is allowed to do when it comes to race. And I think that's one step on the path to this idea of a colorblind Constitution.

[A]

Risa Golubov teaches law and history at the University of Virginia. She is the author of the Lost Promise of Civil Rights and she's about to be the author of Vagrant Nation, coming out in February. Right, Risa?

[B]

Yep.

[A]

From Oxford University Press. Risa, thank you so very much for helping us understand the long, long, complicated history that leads us to the Fisher case.

[B]

Thank you, Daya. It's been such a pleasure.

[A]

And that is going to do it for this week's episode of Amicus, the Thanksgiving edition. Please, once you have given thanks, we would be thankful if you take a moment moment to let us know what you thought of this week's show. Our email address is amicuslate.com and we really love your letters and we thank you for them. We also love reading the reviews of our podcasts that you leave on our itunes page. Those reviews are an amazing way to help other folks find out about the podcast. To leave one of your own, just search Amicus in the itunes store and click the Ratings and Reviews tab. And thank you. If you missed any of our past shows, you can find [e-mail] amicus we also post transcripts there. But you have to be a Slate plus member to access them. You can always sign up for a free trial membership to slate [e-mail] amicusplus this week's excerpts from the Supreme Court's public sessions were provided by oia, a free law project at the Chicago Kent College of Law, part of the Illinois Institute of Technology. Thank you, as always, to the Virginia foundation for the Humanities, where our show is taped. Our producer is Tony Field. Andy Bowers is our executive producer. Amicus is part of the Panoply Network. Check out our entire roster of [e-mail] Panoply Hey, I'm Dalia Lithwick. We will be back with you soon for another edition of Amicus.